2011-8587. Consultative Group To Eliminate the Use of Child Labor and Forced Labor in Imported Agricultural Products

AGENCY:

Foreign Agricultural Service, USDA.

ACTION:

Request for Comment on Guidelines for Eliminating Child and Forced Labor in Agricultural Supply Chains.

SUMMARY:

Notice is hereby given that the U.S. Department of Agriculture (USDA) invites public comment on the guidelines included at the end of this notice for a voluntary initiative to enable entities to reduce the likelihood that agricultural products or commodities imported into the United States are produced by forced labor or child labor. In addition to accepting written comments, USDA will be holding a public meeting of the Consultative Group to Eliminate the Use of Child Labor and Forced Labor in Imported Agricultural Products (Consultative Group) on May 12, 2011 to hear oral comments on the guidelines.

The Notice sets forth the guidelines, as well as the process for submitting written comments and for requesting to appear at the public meeting. Issuance of these guidelines and creation of the Consultative Group were provided for in The Food, Conservation, and Energy Act of 2008 (the Act), also known as the 2008 Farm Bill.

DATES:

• April 29, 2011—Due date for submission of requests to make an oral statement at the Public Meeting. (See Requirements for Submissions and Meeting Procedures below.)
• May 6, 2011—Due date to notify intention to attend the Public Meeting without making a statement or to request special accommodations.
• May 12, 2011—Public Meeting of Consultative Group to Eliminate the Use of Child Labor and Forced Labor in Imported Agricultural Products, Room 104-A, Jamie L. Whitten Building, 12th and Jefferson Drive, SW., Washington, DC 20250, beginning at 8:30 a.m.
• July 11, 2011—Final date for submission of written statements.

ADDRESSES:

You may make written submissions by any of the following methods: by mail to the Office of Agreements and Scientific Affairs, Foreign Agricultural Service, U.S. Department of Agriculture, Stop 1040, 1400 Independence Ave., SW., Washington, DC 20250; by hand (including DHL, FedEx, UPS, etc.) to the Office of Agreements and Scientific Affairs, Foreign Agricultural Service, U.S. Department of Agriculture, Room 4133-S, 1400 Independence Ave., SW., Washington, DC 20250; by e-mail to: [e-mail]; or by fax to [phone].

FOR FURTHER INFORMATION CONTACT:

The Office of Agreements and Scientific Affairs by phone on [phone]; by email addressed to [e-mail]; or by mail addressed to the Office of Agreements and Scientific Affairs, Foreign Agricultural Service, U.S. Department of Agriculture, Stop 1040, 1400 Independence Ave., SW., Washington, DC 20250.

SUPPLEMENTARY INFORMATION:

Section 3205 of the Food, Conservation, and Energy Act of 2008 (Farm Bill, Public Law 110-246) created the Consultative Group to Eliminate the Use of Child Labor and Forced Labor in Imported Agricultural Products (Consultative Group) to develop recommendations relating to a standard set of practices for independent, third-party monitoring and verification for the production, processing, and distribution of agricultural products or commodities to reduce the likelihood that agricultural products or commodities imported into the United States are produced with the use of forced labor or child labor. As required by the statute, the Consultative Group is made up of officials from the Departments of Agriculture, Labor and State as well as representatives of agricultural enterprises, non-governmental organizations, academic and research institutions and a third party certification body. Within one year after receiving the Consultative Group's recommendations, the Secretary of Agriculture is required to release guidelines for a voluntary initiative to enable entities to address issues raised by the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.). These guidelines must be published in the Federal Register and made available for public comment for a period of 90 days. The Consultative Group will terminate on December 31, 2012.

On December 21, 2010, the Consultative Group presented its recommendations to Secretary Vilsack. On January 31, 2011, USDA reported the recommendations to Congress. They are now available on USDA's Web site at the following URL: http://www.fas.usda.gov/​info/​Child_​labor/​Childlabor.asp. The Secretary has elected to issue guidelines based on the Consultative Group's recommendations without change. Those guidelines are reproduced at the end of this notice.

As there are a wide variety of circumstances and relationships in commercial systems in the agricultural sector, the Guidelines focus on essential elements for credible, up-to-date monitoring and verification systems rather than prescribing specific detailed steps for all companies to use. There are many ways companies and other entities could implement these guidelines to fit their specific circumstances, and the methods which are suggested in the text are certainly not exhaustive. USDA hopes that these guidelines will serve to advance the cause of eliminating the use of forced labor and the worst forms of child labor in agricultural supply chains. We are interested to receive comments and particularly to engage interested parties in further discussions on ways these guidelines might be used.

Following are some questions to help respondents in framing their comments:

(a) How do the guidelines compare to current practices of companies, industry groups, and certification/accreditation organizations that are interested in making use of these guidelines? What challenges do you see for incorporating the guidelines into existing or new programs? Are there additional market-based incentives or government actions that would help in overcoming these challenges?

(b) Are there areas of the guidelines that need to be more fully developed in order to: (1) Make them useful for a particular industry; (2) increase public confidence in the integrity of programs that utilize the guidelines or (3) adequately address victim protection concerns?

(c) What additional steps by the U.S. Government would be helpful to aid entities in adopting and implementing the guidelines?

Requirements for Written Comment Submissions

Written submissions in response to this notice must be made in English and should not exceed 30 single-spaced standard letter-size pages in 12-point type, including attachments. Comments may be submitted by any of the methods described in the ADDRESSES section of this notice, but should be submitted no later than July 11, 2011. All comments will be posted on the FAS Web site.

Requirements for Participation in the Public Meeting

By April 29, 2011, all interested parties wishing to make an oral statement at the public meeting must submit the name, address, telephone number, facsimile number and e-mail address of the attendee(s) representing their organization by e-mail to: [e-mail]. Requests to present oral statements must be accompanied by a written statement which, at a minimum, identifies key issues to be addressed in the oral statement. Depending on the number of identified participants, oral statements before the Consultative Group may be subject to time limits in order to accommodate all participants. The meeting will be open to the public and all submissions will be posted on the FAS Web site. USDA is a controlled access facility. Therefore, individuals who wish to attend the meeting without making a statement must also register with the Consultative Group so that arrangements can be made for them to be allowed to enter the facility. Persons who wish to register or to request special accommodations for a disability or other reasons must submit a notification by e-mail to: [e-mail] by May 6, 2011. No electronic media coverage will be allowed. Press inquiries should be directed to the USDA Office of Communications at [phone].

Guidelines

The following program elements should be part of any program intended to reduce the likelihood that imported agricultural products are produced with the use of forced labor or child labor. Section I. below provides relevant definitions for the guidelines that follow; section II outlines the elements that should be included in company programs; and section III describes the role of independent third-party reviewers.

I. Definitions

Given the variety of existing programs and the varying use of terms from one to another, the Group agreed on the following operating definitions for its recommended program:

Agricultural Products—Goods in chapters 1-24 of the Harmonized System, other than fish, as well as a few additional products outside of those chapters, including raw cotton, raw wool, hides, skins, proteins, and essential oils.

Child Labor—The worst forms of child labor as defined in ILO Convention 182, the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor.

Company—An entity involved in the production, processing and distribution of agricultural products or commodities; or an entity which uses such products or commodities as inputs into further processed goods.

Forced Labor—All work or service that is exacted from any individual under menace of any penalty for nonperformance of the work or service, and for which the work or service is not offered voluntarily; or the work or service is performed as a result of coercion, debt bondage, or involuntary servitude (as those terms are defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102); and by 1 or more individuals who, at the time of performing the work or service, were being subjected to a severe form of trafficking in persons (as that term is defined in that section).

Independent Third Party Monitoring—Process of evaluating the implementation of standards on child labor and forced labor by a company's supplier(s) through announced and unannounced audits conducted on randomly selected suppliers carried out by independent monitors.

Producer—Source(s) of raw agricultural materials used by companies; could be individual farms or groups of farms organized into an association or cooperative.

Remediation—Activities or systems that a company puts in place to address non-compliance with the child labor and forced labor standards identified through monitoring and/or verification. The remedies may apply to individuals adversely affected by the non-compliant conduct or to address broader systematic processes and/or those of its suppliers.

Supplier—Any organization or individual in the supply chain of a particular agricultural product or commodity.

Supply Chain—All organizations and individuals involved in producing, processing, and/or distributing an agricultural product or commodity from its point of origin to the company.

Verification—Process by which a company is evaluated to determine compliance with its documented program, including standards on child labor and forced labor. Includes an evaluation of (1) data gathered through monitoring activities to ensure results are reliable and process is credible; and (2) the system established to remediate violations to determine if remediation is implemented and effective.

Violation—An instance where the use of child labor and/or forced labor has been identified and/or non-compliance with the company's standards on child labor and forced labor.

II. Company Program Elements

Company programs should include the elements outlined below. Once a company has implemented its program, it should seek independent third-party monitoring and verification in accordance with section III.

Company programs should be based upon management systems, capable of supporting and demonstrating consistent achievement of the elements outlined below. Companies can find information on the requirements for such systems in recognized ISO Standards, such as ISO 17021, ISO Guide 65, ISO 9001, and ISO 19011, or other relevant standards. These standards cover issues such as, impartiality and confidentiality, documentation and record control, management reviews, personnel qualification criteria, audit procedures, appeals, and complaints.

Additionally, companies adopting the Guidelines are expected to engage with governments, international organizations, and/or local communities to promote the provision of social safety nets that prevent child and forced labor and provide services to victims and persons at risk. Companies may also carry out activities that may not be included in these Guidelines but would nonetheless help them achieve their goal of reducing the likelihood of child labor and forced labor in their supply chains. For example, companies may choose to partner with other companies in their industry to share standards, tools, audit reports, or to pool remediation resources for greater potential impact.

A. Foundation Elements

1. Standards on Child Labor and Forced Labor

a. Standards should meet or exceed ILO standards as summarized below:

i. No person shall be involved in the worst forms of child labor, which include child slavery; sale/trafficking of children; debt bondage; serfdom; forced/compulsory labor; child soldering; all forms of commercial sexual exploitation; use of children in illicit activities; and work which harms the health, safety or morals of children. For purposes of this definition, a child is anyone under the age of 18.

ii. No person shall be subjected to work or service exacted under the menace of any penalty and for which the person has not offered himself voluntarily.

iii. No person shall be subjected to work imposed as a means of political coercion or education; as a punishment for holding or expressing political views; as a method of mobilizing labor for economic development; as a means of labor discipline; as a punishment for participation in strikes; or as a means of racial, social, national or religious discrimination.

b. Where national laws on child labor are equal to or more stringent than ILO standards, company standards should meet or exceed national laws.

c. Standards may be articulated through a variety of means, such as codes of conduct, multi-stakeholder codes in which the company participates, labor/human rights policies, collective bargaining agreements, framework agreements and others.

d. Standards should be made available to the public.

e. Company may choose to set additional standards relevant to its operations, such as standards on non-working children accompanying parents to worksites or treatment of foreign contract workers.

2. Supply Chain Mapping and Risk Assessment

a. Company should map its supply chain(s), beginning with the producer.

b. Company should identify areas of child/forced labor risk along chains; this may be done by:

i. Collecting available information on child/forced labor prevalence in industry in areas where product is sourced.

ii. Consulting with local stakeholders on social, economic and cultural factors, crop cycles, migration patterns, labor recruitment practices, access to judicial systems and processes, government policies and policy gaps, producer financial exposure, and any other relevant issues.

iii. Examining impact of company's own pricing and procurement policies on child/forced labor risks.

c. Company should focus its program efforts (Monitoring, Continuous Improvement and Accountability) on those areas identified to be most at risk for child and/or forced labor.

d. Company should update its risk assessment periodically based on experience operating its program.

e. Companies should implement systems to trace commodities to the producer level where feasible.

B. Communications and Monitoring

1. Communications

a. Company should communicate child labor and forced labor standards, rights, expectations, monitoring and verification programs, remediation policies, and complaint process and process for redress to:

i. Suppliers through training for managers, supervisors and other staff.

ii. Workers (including unions where they exist) and producers.

iii. Other levels of supply chain as appropriate (traders, middlemen, processors, exporters).

iv. Civil society groups and other relevant stakeholders in the country/geographic locations of sourcing.

b. Company should ensure that a safe and accessible channel is available to workers and other stakeholders to lodge complaints, including through independent monitors or verifiers. Company should also ensure that a transparent and accessible communications protocol is in place to notify victims and other affected stakeholders of complaints received and outcomes, with appropriate safeguards to protect victim's privacy.

c. All communications should include regular consultation as well as clear channels for reporting of immediate issues, and be conducted in a language(s) and manner that is understood by workers.

2. Monitoring

a. Company should develop monitoring tools based on its standards on child labor and forced labor (see Section II.A.).

b. Company may have internal staff of auditors and/or hire a credible organization to carry out monitoring activities.

c. Auditors should be competent, should have knowledge of local contexts and languages, and should have the skills and knowledge appropriate for evaluating and responding to child and forced labor situations.

d. First round of monitoring should be used to establish baseline data on incidence of child/forced labor throughout the company's supply chain.

e. Monitoring should occur on a continuous basis, as well as in response to any whistleblower allegations, with special emphasis on those areas identified to be most at risk.

f. Monitoring results should be tracked and updated to identify trends and persistent challenges.

g. Monitors should check that suppliers are maintaining appropriate traceability documentation.

h. When violations found, company should remediate (see Section II.C.1.).

C. Continuous Improvement and Accountability

1. Remediation

a. In consultation with relevant stakeholders, company should develop and put in place a remediation policy/plan that addresses remediation for individual victims as well as remediation of broader patterns of non-compliance caused by deficiencies in the company's and/or suppliers' systems and/or processes.

b. Company remediation plan should take into consideration all findings reported by independent third party monitors and verifiers.

c. Remediation for individual victims:

i. Should include protocols for appropriate immediate actions, such as referral to law enforcement or appropriate authorities in cases where, auditors discover specific violations of applicable child or forced labor laws.

ii. Should also include resources for victim services such as rehabilitation, education and training, employment, appropriate housing, counseling, restitution for lost wages and other material assistance.

d. Remediation of company's and/or suppliers' systems and processes:

i. Should include working with suppliers in situations where non-compliance with child labor and/or forced labor standards have been found to develop and implement systems to correct these violations and to build systems aimed at reducing child and/or forced labor on a systematic basis.

ii. Could include provision of technical assistance to help suppliers with known violations to address specific issues; can also include technical assistance on broader labor issues that underlie child/forced labor (e.g. workplace cooperation, quality assurance, health and safety, productivity, working conditions, and human resource management).

iii. Could include positive incentives for suppliers in appropriate cases such as creation of a preferred suppliers list, a price premium, purchase guarantees, access to financing, inclusion in national or country of origin trade promotion/registries, and/or regular public reporting that rewards compliance.

iv. Could include negative incentives in cases where suppliers have performed poorly and have had repeated non-compliance with company child and/or forced labor standards. The negative incentives may include termination, suspension or reduction of contracts. These steps should only be taken after other remediation and engagement efforts have been explored and failed to achieve the desired results.

2. Internal Process Review

a. Company should periodically check its own progress against its program goals including determining the effectiveness of its program to reduce the overall incidence of child labor or forced labor in its supply chain.

b. Company should address areas where goals have not been met.

c. Where remediation has been undertaken, company should confirm that remediation has been implemented and is effective.

d. Company should make information available to the public on its monitoring program and process to remediate/improve performance;

III. Independent Third-Party Review

Companies developing programs in accordance with the Guidelines should seek independent, third party review of their program implementation. Independent review assures the company's customers that the company is meeting the standards on child labor and forced labor and relevant requirements outlined within its own program. There are two possible methods of conducting independent review. The independent third-party monitoring model utilizes independent external monitoring organizations and monitors to evaluate conditions at the facilities of the company and its suppliers. The independent third-party verification model utilizes accredited certification bodies to verify the company's ability to implement and maintain a program that ensures its suppliers meet its standards on child labor and forced labor. There are advantages and disadvantages with each of these models. For example:

—Independent third-party monitoring may include unannounced and announced on-site visits to evaluate a company's suppliers to determine compliance with child labor and forced labor standards. The monitor identifies violations of child labor and forced labor when observed. However, independent third-party monitoring will not necessarily include an evaluation of the company's entire documented program.

—Independent third-party verification includes an evaluation of the company's entire documented program to determine compliance to the program as well as to the standards for child labor and forced labor. It includes witnessing the company evaluating its suppliers. The verifier does not conduct independent evaluations of suppliers. However, the verifier does identify violations of child labor and forced labor when observed.

Companies may choose whichever model is most appropriate for their circumstances; however, a comprehensive program should include a combination of the two models. It should be noted that, while these review methods can verify that companies have robust systems in place to reduce the likelihood that child or forced labor is being used in their supply chains, neither model guarantees the absence of child or forced labor. Key elements of the two models are described below:

A. Independent Third Party Monitoring

1. Monitors should be accredited to conduct independent, third party monitoring. Monitors should have expertise on labor standards and possess knowledge of local workplace conditions and prevailing industry practices. Monitors should have experience and demonstrate competence in the execution of onsite evaluations of labor standards compliance in an agricultural setting.

2. Independent monitoring should be conducted by an entity external to the company and should demonstrate independence and impartiality as a precondition for participating in the monitoring process.

3. Monitoring should consist of on-site visits to a representative sample of farms and/or agricultural worksites and should occur on a continuous basis focusing on times of higher risk of use of child labor and/or forced labor in order to determine if child labor and forced labor standards are being respected and enforced. Unannounced visits are necessary to carry out this function fully. Announced visits may also be useful when it is necessary to have access to specific personnel or documentation.

4. Suppliers should be randomly selected. However, such selection should focus on suppliers that are identified to be at most risk.

5. Monitors should provide the company (ies) with a report outlining the findings and may make recommendations for remediation measures a company should take to address any incidences where the supplier did not implement the company's standards on child labor and/or forced labor.

B. Independent Third Party Verification

1. Verifiers should be accredited certification bodies, complying with either ISO/IEC 17021:2006 or ISO/IEC Guide 65:1996 or other relevant systems. ISO/IEC 17021 contains principles and requirements for the competence, consistency, and impartiality of an audit and the certification of management systems of all types and for bodies providing these activities. ISO/IEC Guide 65 contains the general requirements that a third party operating a product or service certification system shall meet in order to be recognized as competent and reliable. Verifiers should have qualified and competent personnel with the appropriate skills and knowledge in child labor and forced labor standards.

2. Third Party verification should be conducted at least annually.

3. Audits should include testing of audit data to confirm that company data systems are reliable.

4. Audits should include witness audits where the Verifier observes the company's monitoring activities.

5. Announced audits are important when it is necessary to have access to specific personnel or documentation. Unannounced audits may also be useful in verifying that company policies are being implemented appropriately. Verifiers should provide the company with a report identifying weaknesses found in the company's program and program implementation.

6. Verifiers should require the company to implement remediation measures to address the weaknesses, and these remediation efforts should then be audited to confirm that they were implemented and effective.

7. Verifiers should approve companies whose programs and program implementation are found to be in conformance to the requirements of the Guidelines.

8. Each verifier auditing companies to the Guidelines should provide the public a list of companies under review, approved, suspended, and/or withdrawn.

Signed at Washington, DC, on April 4th, 2011.

John D. Brewer,

Administrator, Foreign Agricultural Service.